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TMI Blog1998 (12) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the date on which the order sought to be appealed against is communicated: Provided that when an application is made under section 10C for reopening of an assessment made to the best of judgment of the assessing authority, and the application is rejected, the date in relation to an appeal against the assessment order shall be the date on which the order of rejection is communicated: Provided further that no appeal shall be entertained under this sub-section unless it is accompanied by a satisfactory proof of the payment of tax or other amounts admitted by the appellant to be due from him or of such instalment thereof as might have become payable, as the case may be, ... (emphasis added). 4.. On April 22, 1988 by an amendment the words admitted by the appellant to be due from him were deleted from the second proviso to clause (b) of sub-section (1) of section 13 and were replaced by the words due from the appellant . 5.. The questions that the application for revision frames are: (1) Whether the amended provisions of section 13, RST Act would be applicable to only those cases in which the accounting period of the assessee commenced with effect from April 22, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 STC 34, by the Rajasthan High Court in Ganpati Roller Flour Mills v. State of Rajasthan 1984 RLR 990, and in Jamandass v. Gokuldass 1983 RLW 565. 7.. Hence this application for revision has been filed. 8.. The learned Additional Advocate-General, Mr. J.S. Rastogi contends that the right of appeal is a vested right but it can always be made conditional and that was all that the amendment in question did and the right to appeal continued and had not been whittled down. Reliance was placed on rulings of the Supreme Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724 and in Vijay Prakash D. Mehta v. Collector of Customs [1989] 72 STC 324; AIR 1988 SC 2010. 9.. The learned counsel for the dealer, Mr. V.K. Jain contends that the matter had been correctly determined by the Board and relies on the ruling in Ramesh Singh v. Cinta Devi AIR 1996 SC 1560. 10.. We have heard the learned counsel for the parties and considered the material on record and the case law cited. 11.. With effect from September 13, 1989 by yet another amendment the phraseology employed prior to April 22, 1988 has been restored in the second proviso to clause (b) of sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akin to the case in hand and referred to as the third contingency at para 13 supra. The pre-amendment and post-amendment positions too, were the same as in the case in hand in as much as before the amendment the appellant had to deposit the tax admitted by him and after the amendment he had to deposit the tax due. The Supreme Court held as follows: That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceedings. The question was answered in the negative by the Judicial Committee in the Colonial Sugar Refining Co., Ltd. v. Irving [1905] AC 369 .... the Privy Council said: As regards the general principles applicable to the case there was no controversy. On the one h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal from an order made after that date... In our view....the pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by the deposit of the assessed tax as required by the amended proviso....overlooks the fact of existence of the old law for the purpose of supporting the pre-existing right really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. The argument of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not the decision itself. (emphasis added) 17.. In Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724, a five-Judge Bench of the Supreme Court had a matter before it related to the extension of the Assam Sales Tax Act and Rules to the Shillong Administered Areas in which one of the questions that had arisen was the same as in Hoosein Kasam Dada s case [1953] 4 STC 114 (SC). The Assam Sales Tax Act, 1946 as it originally stood provided in the case of appeal for the amount of tax admitted to be due by the appellant to be deposited. This was amended with effect from April 1, 1958 to provide for the tax due being deposited. In the words of the Supreme Court: It was contended that the amendment came into force with effect from April 1, 1958, and it cannot be given retrospective effect so as to apply to assessment periods ending on September 30, 1956, March 31, 1957, and September 30, 1957. We are unable to accept this argument as correct because the assessments for these three periods were completed after the amending Act came in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court arose under the Motor Vehicles Act ( MV Act ) and pertained to the right of appeal with respect to a claim before the Motor Accident Claims Tribunal. The MV Act, 1939 ( Old Act ) was repealed with effect from July 1, 1989 by the MV Act, 1988 ( New Act ). The question arose whether the right of appeal under the Old Act would survive even after its repeal by the New Act? The accident took place on May 27, 1988, which gave rise to a claim for compensation under the Old Act. The claim application was filed on December 23, 1988. The New Act came into force on July 1, 1989. The claim application instituted under the Old Act was disposed of on June 29, 1992, i.e., after the New Act came into force. That gave rise to a right to file an appeal. The appeal was preferred under the Old Act on September 25, 1992. The High Court dismissed the appeal on the ground that the appellant had not deposited the amount as required by the provisions of the New Act. The Supreme Court took note of the provisions of the General Clauses Act and the diverse stands taken by different High Courts and held as follows: In our view the point at issue stands squarely covered by three decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memoranda of appeal which was after the coming into force of the Amendment Act. The State s appeal was dismissed. The Supreme Court laid down that: It is thus clear that in a long line of decisions approved by this Court and atleast in one given by this Court (i.e., Hoosein Kasam Dada s case [1953] 4 STC 114 (SC); AIR 1953 SC 221), it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. (emphasis added) 24.. In Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax [1961] 12 STC 219 (SC); AIR 1967 SC 344, a five-Judge Bench of the Supreme Court had a matter before it in which the assessee filed an appeal against a sales tax assessment by which time, the Sales Tax Act was amended making it incumbent on the appellant to deposit the assessed tax as a condition precedent to the admission of the appeal. The appellant did not comply with this requirement of the law, and the appeal was dismissed. The Supreme Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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